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Trump weaponizes 'deep state' to investigate his investigators

The president, experts say, is acting within his legal rights, and outside the bounds of normal presidential behavior.

News Analysis

WASHINGTON — President Donald Trump has long complained about what he calls a "witch hunt" investigation into his 2016 presidential campaign by "deep state" actors in the law enforcement and intelligence communities — a probe that he says was first designed to deny him the presidency and, after he won, to delegitimize or even remove him.

Now, with all the tools of that federal government at his disposal — including some of the very agencies he's cast as enemies of his presidency and the American public — he is weaponizing them to make his case that he is the victim of malfeasance at the highest levels of American law enforcement.

On Sunday, under pressure from Trump, his deputy attorney general, Rod Rosenstein, and FBI Director Christopher Wray asked the Justice Department's inspector general to, as White House press secretary Sarah Huckabee Sanders put it, "expand its current investigation to include any irregularities with the Federal Bureau of Investigation’s or the Department of Justice’s tactics concerning the Trump campaign."

The president also got Rosenstein and Wray to agree to meet with congressional Republicans and other national security officials to discuss sharing classified information, including possibly the identity of an FBI source. And Trump allies in the House introduced a resolution Tuesday calling for a new special counsel to probe the law enforcement agencies' activities during the 2016 campaign.

In other words, Trump is using his powers, both formal and informal, to investigate the investigators.

"What goes around, comes around!" he tweeted Wednesday morning.

Later Wednesday, in a brief exchange with reporters, Trump insisted he is not trying to undermine ongoing Justice Department investigations.

"We’re not undercutting," he said. "We’re cleaning everything up. This was a terrible situation. What we’re doing is we’re cleaning everything up. What I’m doing is a service to this country."

While experts on the Constitution say his latest moves may be legal by themselves, they express concern that Trump is operating outside of normal behavior for a president in the post-Watergate era and that, taken together, his attacks on various institutions and players over the course of his presidency could amount to an effort to obstruct justice.

"I don’t think the latest gambit is illegal, per se. It might depend on the motive. But the president is empowered to recommend such an investigation," Richard Ben-Veniste, who served as an assistant special prosecutor in charge of the Watergate Task Force, said of the request for an expansion of the DOJ's IG probe. "The problem is that things that are normally respected are disrespected in this administration, such as the distance the president should have from the Justice Department.”

Ben-Veniste said that Trump's actions "could later come back to haunt him" as special counsel Robert Mueller's investigation proceeds. "The violation of federal criminal law can be achieved by means that themselves are legal but because of a corrupt intent of the actor, in the context of other provable facts, become illegal," he said.

The articles of impeachment against President Richard Nixon, which were approved by a House committee before he resigned, included findings that he had improperly interfered with justice and failed to live up to his oath of office. Since then, presidents have been wary of interfering in Justice Department probes into their administrations.

"Most presidents have not gotten themselves anywhere close to Nixon’s behavior," said John Dean, who was Nixon's White House counsel. "What we have (now) are a lot of echoes of Watergate behavior."

Democrats on Capitol Hill say Trump and Rep. Devin Nunes, R-Calif., chairman of the House Intelligence Committee, are trying to circumvent a law protecting the identities of sources of classified information for the benefit of the president and to the detriment of national security.

"A deliberate decision to expose the identity of a confidential source for some perceived political advantage is reckless, stupid and dangerous," Rep. Jerrold Nadler of New York, the top Democrat on the House Judiciary Committee, said in response to news of the meeting between top House Republicans and law enforcement officials. "Human intelligence is the core of our national security operation. These men and women risk their lives in the service of our country. President Trump and his Republican allies in Congress have failed in their responsibility to protect these sources."

It's the collaboration between Trump and his allies in Congress, says Georgetown University law professor Martin Lederman, that stands out as having little precedent, if any.

"The questions of most lasting significance here are not about how unusual and inappropriate Donald Trump's actions are, which is not unexpected. This is the person we've elected. He's taken pride in rejecting all the old norms," Lederman said. "What’s really significant is that he is not getting any resistance from Congress and from the establishment GOP, and they are so uniformly either silent or supportive. That's what's truly groundbreaking here, and has the most potential to be of deep and lasting importance beyond Trump."

While the legal validity of Trump's latest moves may depend on his motives, it's not unusual for a president to fight back against perceived adversaries. In that way, the basic outlines of Trump's public attack on agencies and individuals that he sees as a threat may mark a difference of degree, not thrust.

"The attempt to disparage the investigators is probably as old as the hills," Ben-Veniste said. "Trump takes it to new heights or new lows, depending on your perspective."

Still, Ciara Torres-Spelliscy, a professor at Stetson University's College of Law, said Trump's decision to direct an inspector general's probe toward those who investigated him in the first place is new territory.

"We are way outside the norms when it comes to President Trump, and asking for an investigation into the investigation of his own campaign," she said.

Some Trump critics feared that he was testing the boundaries of his authority by pushing Rosenstein to lean on the inspector general and that he might go further in order to protect himself from Mueller's probe.

"In surrendering this ground, Rosenstein seems to be giving the president and his defenders in Congress just enough accommodation — without fatally compromising the Justice Department's independence — to forestall either his own firing or Mueller's and to buy enough time for Mueller to complete his work," MSNBC Justice and Security analyst Matthew Miller wrote in a Washington Post op-ed Tuesday.

"But this is a dangerous game, and in the short term it may only embolden the president," Miller wrote. "Just think about it from Trump's perspective: He crossed what has long been seen as a red line on Sunday, and not only did he not pay any consequence but also he got at least some of what he wanted."

On Tuesday, Trump batted aside a reporter's question about whether or not he continues to have confidence in Rosenstein.

"What's your next question, please?" he said.